 |
In short, I was served divorce papers. I should have responded within 30 days but I didn't. It was suggested that I now need to file two different forms;
1. Response to the petition (FL120)
2. Motion too set aside default. Cant' find this form.
Anyone know the exact name and FL number? I'm in California
Thanks,
Frankie
Exactly what is it you want to set aside. Thye have numerous form but as I recall the motion to set aside default judgment actually has to be in pleading.
I know I have one as I did one a time ago so I am looking through my files for it and will let you know what I find. Hopefully someone else will find it faster for you.
There is FL-640 but that is only for support order and there is FL 262 and 263, but they are for paternity...
What county are you in? Each can have different rules regarding this. I would call a court clerk and ask the format required for the matter, then you will know for sure if a form or a pleading.
In the meantime, here is a link with self-help info for you:
California Courts: Programs: Equal Access: Instructional Materials: Family Law: Amendments, Setting Aside Defaults, Other
You definitely need this http://www.courtinfo.ca.gov/programs...de_default.doc
Quote:
Originally Posted by 1STAND10
I would not attempt this without an Attorney - if you cannot locate the forms how are you ever going to fill them out in accordance with the Law - ?
Has the divorce been granted?
Well, for him to be told to file a motion to set aside judgment, I would think that the divorce judgment had been granted. But we do not know for sure yet till 1STAND10 answers back.
My question is motive and why now. It does take a minimum of 1 year in CA for a dissolution judgment to be granted.
Quote:
Originally Posted by Cailleac Bhuer
In some States there's a waiting period - that's why I asked.
Frankie:Quote:
Originally Posted by 1STAND10
If you do not have an attorney that the following to the courthouse family law facilitator and ask for help to make it in pleading and properly fill out.
Declaration Supporting Motion To Set Aside
Entry of Default Judgment
Attorney name
Address
Phone
Attorney for _____________________, Defendant
____________ Court, County of ____________
___________________) No. __________
Plaintiff(s) )
vs. ) DECLARATION OF __________________ SUPPORTING
) _________________'S MOTION TO SET ASIDE
___________________) DEFAULT JUDGMENT
Defendant(s) )
___________________ declares:
I am the attorney for _____________________, defendant in this action.
1. I have personal knowledge of all facts stated in this declaration and, if called to testify, I could and would do so.
2. The entry of default judgment against defendant in this action was due to:
3. The entry of default judgment was discovered by me on the ____ day of __________, 20__. This motion was not filed earlier because: .
I declare under penalty of perjury under the laws of the State of _______________ that the foregoing is true and correct.
_____________________________ ____________________
Signature Date
Quote:
Originally Posted by i_can_do_this
This form is not appropriate - he did not have an Attorney from what I can read. He can't sign as an Attorney if he is NOT an Attorney.
Courthouse staff is not allowed to assist people in filling out legal papers in my area - they will not take the responsibility.
OP needs to consult with an Attorney - this is nothing to be attempted by yourself.
Well you, but he did say to go to the family law facilitator for assistance to properly fill out, they would be able to help him with correct format and in correct wording. It is an example but not the exact one. It is help someone with something like that here I suppose. I hope the original poster did go to the facilitator or low cost clinic for help. I have exactly what the original poster needs, but would not post it here as it loses proper formatting as well as the wording needs to be made to that person; hard to post an example for sure.
Quote:
Originally Posted by iLuvRatatouille
If you have the exact motion I would clean it up and post it because I can find nothing and the Motion that was posted appears to be an effort to set aside a Judgment for money as it does not site California law, as required.
Perhaps OP will come back and let us know if the Court assisted in preparing the papers.
My research indicates facilitators will not lend assistance/legal advice in matters concerning the actual divorce but only in matters relating to child support, spousal support, partner support, and health insurance in on-going cases. Perhaps this varies from County to County - I don't know as I'm not in California. OP should check with his particular County.
I do find that it is difficult to set aside a default divorce in California and the following case is frequently cited: "Husband filed for divorce in June, 2006. Wife failed to respond and default judgment was entered in September 2006. In March 2007, wife filed a motion to set aside the judgment; it was denied. The lower court found that, even though the motion to set aside the judgment was timely pursuant to Code of Civil Procedure, section 473, the motion to set aside the entry of default was not. Further, there was no proof that setting aside the judgment would alter the outcome under Family Code, section 2121. The court further found that wife lacked credibility in her declaration.
Wife argues that the court abused discretion and exceeded bounds of reason - the court did not consider all the facts and law essential to an informed, intelligent and just decision. For instance, as to merits, the court stated that it would be unlikely for wife to ever receive spousal support; this was arbitrary, capricious and whimsical thinking as she would at least be entitled to temporary support while the divorce was pending. HELD: wife has not provided support for claim of error; further, credibility is an issue for the trial court. Labels: motion to set aside default"
The Court appears to be looking for an error on the part of the Defendant, not a desire for a different result or mistake.
Hopefully someone familiar with California Law will come along.
In the meantime, please see if you can "clean up" the motion this person needs and post it because I cannot find such a form on line.
Quote:
Originally Posted by Cailleac Bhuer
Prepare a Notice of Motion to Set Aside Default and Default Judgment
THERE IS A FORM FOR THAT INCLUDED IN THE LINK
Prepare a Supporting Declaration or Affidavit that states facts showing that the default and default judgment were the result of the moving party's mistake, inadvertence, surprise, or excusable neglect
THERE IS A FORM OF DECLARATION, BUT DECLARATION FOR SOMETHING ELSE, SO IT NEEDS TO BE CHANGED.
Prepare a Memorandum of Points and Authorities
THE FORM IS THERE.
Prepare a proposed responsive pleading (e.g. Answer or Demurrer) to the original Summons and Complaint, to show the court that you have a meritorious defense to the original case
This link
California Courts: Self-Help Center: Families & Children: Divorce, Legal Separation & Annulment: Forms & Instructions for Divorce, Legal Separation & Annulment Cases
File and serve your Notice of Motion and other support papers, as well as your proposed responsive pleading.
Hopefully, 1STAND10 will have solved the problem by now since the original question was posted on August 11, 2008 at 07:32 P.M.
It's always a good idea to be checking the dates of the original posts. I have made the mistake of posting on threads where the original question has long since been a resolved issue.
Thanks!
I'm a California family law attorney and a Certified Family Law Specialist. There is no family law form for a motion to set aside a default. You simply use the usual OSC or Notice of Motion form and check off the "other" box and write in "Set Aside Default/Default Judgment." Watch the time limits since there is a 6 month limit under CCP 473 (I've seen judges ignore the 6 month rule, by the way). You do NOT need points and authorities (these are never needed in family law law and motion matters but I use them all the time with complicated legal issues or if I think the judge is inexperienced in the field- they are not banned, just optional. You should also attach a copy of your proposed Response to the Application for Order and Supporting Declaration (incidentally, we do NOT call them "answers"- that's a term used in civil litigation and in other states and demurrers are not allowed in family law).Quote:
Originally Posted by sorot
You need some help with this so talk to a family law lawyer (try a CFLS- certified family law specialist for best results). The facilitator's office might be of some help but they won't give you a lot of time for a default set aside.
I have the same problem as Frankie Except mine is a restraining order . And I missed the hearing for final judgment because I was in the emergancy room for a day and 1/2.
I HAVE BEEN KILLING MYSELF trying to find the same thinds Frankie was. There has to be some kind of form I can file for defaulying due to a medical emergancy?
Hi, mmalsac!
I would suggest starting a separate thread about what you're asking. This thread is now archived and not generally visible to people unless they happen to go to the particular forum topic area.
Thanks!
In California it is a fl-301 a notice of motion and under withc one put a ckeck in outher and then put the motion you are filling for
| All times are GMT -7. The time now is 06:05 AM. |